- (1.) THIS First Appeal is at the instance of a husband in a suit for divorce on the ground of cruelty and desertion and is preferred against the judgment and decree dated 21st February, 2005, passed by the learned Additional District Judge, Eleventh Court, Alipore, in Matrimonial Suit No. 29 of 2002 thereby dismissing the suit.
(2.) BEING dissatisfied, the husband has come up with the present first appeal. The appellant before us filed in the Court of learned District Judge, Alipore, a matrimonial suit, being Matrimonial Suit No. 104 of 1992 under the provision of Section 27 (1) (b) and (d) of Special Marriage Act, 1954, for divorce. The said suit was subsequently transferred to the Court of Additional District Judge, Eleventh Court, Alipore, and was re-numbered as Matrimonial Suit No. 29 of 2002.
(3.) THE case made by the appellant may be summed up thus. (a) The parties were married on 18th November, 1974, before the marriage officer at Deshapran Sasmal Road under the Special Marriage Act and subsequently, there was a social function in the house of the respondent's elder sister on 7th March, 1977. The marriage was duly consummated and a son was born in the said wedlock on 19th April, 1984. (b) From the very day of coming to the matrimonial home, the respondent began to find fault with the appellant and his other family-members in every affairs and developed the habit of running away to her paternal residence at 3, Sarsuna Main Road off and on and staying there for two and three days and then coming back. (c) At every step, the respondent used to give the appellant bad name by saying publicly that he was in illicit connection with some or other women and thereby humiliated the appellant in the presence of others and at the same time, on such false allegation, she refused to share bed with the appellant and did not allow the appellant to get in touch with her, particularly, after the birth of the child. (d) In the year 1985, the respondent proposed to open a cloth-shop, at her paternal residence at 3, Sarsuna Main Road and asked for financial help from the appellant and the appellant readily agreed. With his own money, the appellant opened a cloth shop at 3, Sarsuna Main Road in the name of the respondent. The telephone which was installed in his residence was shifted to her said shop and he also took a loan of Rs. 10, 000/- from State Bank of India, Bakultala Branch and duly repaid the said amount. Although the respondent started earning huge amount from the said business, she did not pay back a single farthing to the appellant. (e) It was initially decided that the respondent would run the said shop room in the forenoon and in the afternoon, the appellant after returning from his office will look after the shop. But at the evil advice of her elder sister, the respondent disallowed the appellant to run the said shop at all on the false and baseless allegation that if he was allowed to sit in the said shop, he would develop illicit affinity towards the female customers and the business would suffer substantial loss. The main object of the respondent was to deprive the appellant of his money invested in the said business. (f) During the last 2/3 years the appellant had raised and constructed a one-storied building by removing the old dilapidated Kancha structure and took huge amount of loan from different concerns including his employer, namely, the Calcutta Port Trust. From 1st September, 1989, on the plea of pressure of work in the shop, the respondent began to go out of the matrimonial home for her shop early in the morning with her son and returned after 9 p. m. at night and used to take her meal in her paternal residence without caring either to cook any food for the appellant or making any arrangement in that regard. As a result, the appellant could not take any meal for 2/3 days and ultimately, he started taking meal with his mother who used to cook food for herself. (g) During her absence from the house, the respondent kept her room under lock and key and although the appellant asked the respondent not to take the son to the said shop, she turned a deaf ear to the said request, as a result, once the said infant son escaped a fatal accident in front of the shop. Again on 25th January, 1992, the said son had fallen into burning oil in the paternal house of the respondent when she was in the shop. (h) The respondent started sleeping separately in separate bed and room denying access to the appellant since 1st September, 1989, and for all practical purpose deserted the appellant. (i) Whenever any girl or woman would talk with the appellant, she would become furious and started abusing the appellant. On 2nd December, 1991, a local girl named Sipra Gayen came in the morning to the appellant's house for getting instruction to fill up the application form for employment by taking necessary instruction in the presence of the respondent and mother. When the said girl was returning home from tuition she was mercilessly assaulted by the respondent, her sister on public road near Bakultala more. Some local people even abused the appellant for such act on the part of the respondent and her sister as the appellant called for explanation from respondent for such assault she became furious and started assaulting him with blows and fists as the mother of the appellant approached to save him, the respondent also assaulted her mother-in-law by the fists and blows. The suit was, therefore, should be decreed on the ground of desertion and cruelty. By further amendment, the appellant incorporated the fact that during the pendency of the suit, on 17th March, 1996, the respondent with the help of local anti-social people physically assaulted the appellant and a criminal case has been started against the respondent under Sections 341, 448, 114 and 323 of the Indian Penal Code and the same was pending.;